Canada and the United States are similar in many respects, and both protect individual rights at a constitutional level. However, the Supreme Court of Canada and the United States Supreme Court have developed alternative conceptions of the constitutional protection of freedom of expression and equality. This thesis describes these differences and attempts to explain the reasons for their development. Under the Fourteenth Amendment, the U.S. Supreme Court merely requires that governmental actors refrain from overt discrimination on the basis of an objectionable ground. Thus, the Court has created numerous doctrines to limit equality to this definition, including color-blindness, intentional discrimination, and multiple levels of review. Each of these concepts has contributed to the application of formal equality by restricting governmental attempts, such as affirmative action, to alleviate social inequality. In addition, the Court's application of content neutrality to freedom of expression cases has restricted attempts to promote equality through legislation restricting hate speech and pornography. By contrast, the Supreme Court of Canada has interpreted the protection of equality in the Charter of Rights and Freedoms to respond to the actual social consequences of legislation. Rather than limiting the Charter to intentional discrimination, the Court will consider governmental actions which have the effect of creating or encouraging inequality. Similarly, governmental restrictions on hate speech and pornography have been upheld by the Supreme Court of Canada as necessary for the protection of equality. For the Supreme Court of Canada, equality has a social reality. These differences suggest an alternative role of government in the rights sphere in Canada and the United States. The United States Supreme Court has developed a rights interpretation which excludes much significant governmental action, whether positive or negative. The Court has incorporated the Bill of Rights into the Fourteenth Amendment and, in doing so, has expanded individual rights at the expense of state power in the promotion of equality. The lack of such a development in Canada has resulted in a more substantial role for social legislation, while still protecting against governmental overreaching through the Charter. / Law, Peter A. Allard School of / Graduate

This Master's Thesis deals with the sociological phenomenon called affirmative action, which has appeared in different forms in many countries during the second half of 20th century. This topic, as rather complex and overlapping fields of more social sciences, is being widely discussed in the society. In some countries, application of affirmative action brings controversy and even division in the communities. This thesis aims to find the substance of affirmative action and compare it with the principles of equality before law. These topics are discussed in their sociological, psychological and legislative dimensions. The analysis stems from examples of particular causes and recent key judicial decisions in the United States of America, the European Union and India, illustrating legal aspects of affirmative action in different regions. Their discussion tries to point out the different dimensions of affirmative action, including the motivations for implementing it in the society and the following public reflections. Author's main concern is targeted to the relation between different aspects of affirmative action and the main elements of the idea of equality before law. Difference between social engineering approaches and good intention of legislator may be very subtle and politically dependent. In the...

This thesis examines the tension between the evolving demand for the protection and promotion of human rights and the dissatisfaction with the legal institutions charged with these responsibilities. This problematique is examined and reconstructed with the objective of determining how Canadian legal institutions could be structured so as to more effectively contribute to the achievement of social justice. A critical theory approach is undertaken in this thesis. This method involves the development of a transformative ideal against which current practices are examined. This juxtaposition illuminates both the problems with, and the possibilities of, the courts and human rights commissions in interpreting and applying human rights norms. The transformative ideal comprises two elements. The first element postulates that the legal institutional role should be conceived as contributing to a broad and evolving discourse on human rights and responsibilities within the public sphere. The second element holds that this role should be enhanced through the development of transformative human rights practices and their integration into legal processes. The transformative ideal is constructed through a series of six discussions comprising: (1) the development of an analytical framework based on the concepts of social transformation, social justice, human rights and the right to equality; (2) an examination of the critique of the role and functions of courts and human rights commissions; (3) an elaboration of a normative account of the public sphere and discourse together with a discussion of the role of human rights norms therein; (4) a discussion of current mediation practices in the human rights context leading to the development of a normative model of transformative mediation; (5) an examination of the transformative ideal in human rights commission practices; and (6) an exploration of the transformative ideal in court practices. The thesis concludes that the transformative ideal and particularly the concept of transformative human rights practices, will assist in reform of Canadian legal institutions so as to enhance social justice.

Thesis (M.A.)--York University, 2005. Graduate Programme in Interdisciplinary Studies. / Typescript. Includes bibliographical references (leaves 165-175). Also available on the Internet. MODE OF ACCESS via web browser by entering the following URL: http://proquest.umi.com/pqdweb?index=0&did=1299814341&SrchMode=1&sid=16&Fmt=2&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1195573096&clientId=5220

Thesis (Ph. D.)--Carleton University, 2001. / Includes bibliographical references (p. 446-470). Also available in electronic format on the Internet.

Zugl.: Köln, Univ., Habil.-Schr., 2007 / Includes bibliographical references (p. [839]-882) and index.

Thesis (M.A.)--Carleton University, 2001. / Includes bibliographical references (p. 134-137). Also available in electronic format on the Internet.

Habilitationsschrift--Zürich. / Bibliography: p. v-vi.

Überarb. Diss. Univ. Ontario. / Includes bibliographical references and index.

Doctorat en droit / info:eu-repo/semantics/nonPublished